DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2016-2017

CONSTITUTIONAL LAW -II

FINAL DRAFT ON
INDEPENDENCE OF JUDICIARY IN INDIA

Submitted to: Submitted by:

Ms. Ankita Yadav Nivedita Singh

(Assistant Professor) B.A.LL.B (Hons.)

Dr. RML National Law University, Semester- IV.

Lucknow. Roll no. 97

Section-B

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 ACKNOWLEDGEMENT
I would like to express my heartfelt gratitude to my teacher and mentor Ms.Ankita Yadav
(assistant professor), a special thanks to the Vice Chancellor of Dr. Ram Manohar National Law
University Mr. Gurdeep Singh for providing me with this opportunity. I also greatly
acknowledge the help and guidance provided to me by Prof. C.M. Jariwala (Dean Academics).

Thanks and appreciation to my family members for their constant support, to the library
staff and other members of this institution and lastly to my friends for their help.

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TABLE OF CONTENTS

 INTRODUCTION
 MEANING OF THE INDEPENDENCE OF JUDICIARY
 NEED FOR THE INDEPENDENCE OF JUDICIARY
 CONSTITUTIONAL PROVISIONS
 NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
 TRANSPARENT AND OBJECTIVE PROCESS
 REPRESENTING A FULL COURT
 CONCLUSION
 REFERENCES

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INTRODUCTION
Our country India is a democratic country, means that the government has to be ‘by the people,
for the people and of the people`. It guarantees to its citizens various rights through its
Constitution. In order for the smooth working and ensuring rights to everyone the Supreme Court
and the High Courts have been given special powers to safeguard these rights. A mere submitting
of a letter addressed to a judge after violation of a fundamental right, either by the victim of
another person is enough to move courts.

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. It is a well-known fact that the
independence of the judiciary is the basic requisite for ensuring a free and fair society under the
rule of law. Rule of law that is responsible for good governance of the country can be secured
through unbiased judiciary.

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MEANING OF THE INDEPENDENCE OF JUDICIARY
The meaning of the independence of the judiciary is still not clear after years of its existence.
Our constitution by the way of the provisions just talks of the independence of the judiciary but it
is no where defined what actually is the independence of the judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation of
powers which holds its existence from several years. The doctrine of separation of powers talks
of the independence of the judiciary as an institution from the executive and the legislature.

The other meaning of the judicial independence can be found out by looking at the writings of
the scholars who have researched on the topic. Scholars have followed the “constituent
mechanism” (i.e. what constitutes the judiciary) to define the independence of the judiciary.
Scholars try to define judiciary by talking about the independence of the judges which constitutes
judiciary. Therefore the independence of the judiciary is the independence of the exercise of the
functions by the judges in an unbiased manner i.e. free from any external factor.

So the independence of the judiciary can be understood as the independence of the institution of
the judiciary and also the independence of the judges which forms a part of the judiciary.

Shetreet in his work tries to explain the words “Independence” and “Judiciary” separately, and
says that the judiciary is “the organ of the government not forming a part of the executive or the
legislative, which is not subject to personal, substantive and collective control, and which
performs the primary function of adjudication”.

The final outcome that can be derived from Shetreet’s writings is that the independence of the
judiciary as an institution and the independence of the individual judges both have to go hand in
hand as the independence of the judiciary as an institution is not possible without the
independence of the individual judges and is the institution of the judiciary is not independent,
there is no question of the independence of the individual judges.

The Constitution of India envisages an independent Supreme Court. In fact, every member of the
Constituent Assembly had been eager to see that the Court was made independent, as it could
possibly be. In the words of Austin, “The members of the Constituent Assembly envisaged the
judiciary as a bastion of rights and of justice. The Assembly has been careful to keep judiciary
out of politics.”

In the words of a member of the Constituent Assembly. “This is the institution which will
preserve those fundamental rights and secure to every citizen, the rights that have been given to
him under the Constitution. Hence, it must naturally be above all interference by the Executive.
The Supreme Court is the watchdog of democracy.”1

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In fact, independence of judiciary is necessitated not because of eagerness on the part of the
people to treat judges as favored members of the public services. It is essential for maintaining
purity of justice in the social system and enabling them to earn public confidence in the
administration of justice.

In the words of Graham Walles, “The psychological fact behind the principle of independence is
not the immediate reaction of feeling in a man whose impulses are obstructed but the permanent
result in his conduct of the destruction of some impulses and the encouragement of others. We
make a judge independent not in order to spare him personal humiliation but in order that certain
motives shall not and certain other motives shall direct his official conduct.”

WHY IS JUDICIAL INDEPENDENCE IMPORTANT?

Judicial independence play an important role in maintaining the democratic set-up of any
country. An impartial and independent judicial system alone can protect the rights of the citizens
against the arbitrary powers of the executive or legislature. Freedom from the influence and
control of the executive is of crucial importance. It is important for individual freedom that the
judges give their verdict without fear or favor. It refers to an environment where the judge can
pass impartial judgment.

Every democratic country adopts various means to ensure freedom of the judiciary and thereby
to ensure individual freedom. The U.S.A. has adopted system of separation of powers to ensure
independence of the judiciary. But in constitutional systems based on the concept of
Parliamentary sovereignty, the adoption of separation of powers is ruled out. This is the case in
England. This is also partly the case in India, for in India, the doctrines of Parliamentary and
constitutional sovereignty are blended together.2

NEED FOR THE INDEPENDENCE OF JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:

1. To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that
all the organs of the state function within their respective areas and according to the
provisions of the constitution. Judiciary acts as a guardian of the constitution and also
aids in securing the doctrine of separation of powers.

2. Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution

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 so they ensured that the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but such an
interpretation must be unbiased i.e. free from any pressure from any organs like
executive. If the judiciary is not independent, the other organs may pressurize the
judiciary to interpret the provision of the constitution according to them. Judiciary is
given the job to interpret the constitution according to the constitutional philosophy and
the constitutional norms.

3. Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial

justice and not partial or committed justice. By committed justice we mean to say that
when a judge emphasizes on a particular aspect while giving justice and not considering
all the aspects involved in a particular situation. Similarly judiciary must act in an
unbiased manner.3

METHODS TO SECURE INDEPENDENCE OF JUDICIARY:

Sincere efforts have been made to secure the independence of judiciary through the following
methods:

(a) High Qualifications:

Politics in the appointment of judges has been avoided by prescribing high minimum
qualifications for such assignments in the Constitution itself. An aspirant for such an important
office must have been a judge of a High Court, at least for five years or must an advocate of a
High Court be at least for ten years, or be a distinguished jurist.

(b) Handsome Remuneration Subject to Vote of Legislature:

As already mentioned, every judge is paid a high salary to maintain his status and dignity. As per
Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges were paid Rs.
9,000 p.m. However in the recent past, the salaries of Judges of the Supreme Court were raised
to Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m.

Their salaries have been further hiked in view of such hikes of other top officers of the
Government as per 6th Pay Commission report and cabinets’ generosity to hike the salaries of
the top executives viz., President, Vice- President and Governor etc. as well. Three-fold hike in

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case of judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they enjoy
free residential accommodation and many other perks.4

During their term of office, their salaries and allowances cannot be altered to their disadvantage,
except in grave financial emergency. The administrative expenses of the Court are charged on
the Consolidated Fund. Evidently, their salaries and allowances compare favorably with those of
judges in other courts of the world. On September 21, 2006 their allowances after retirement
were hiked. This assures more security after retirement as well as pension will be hiked as per
enhanced salaries.

(c) Security of Tenure:

The Judges of the Supreme Court enjoy security of tenure. They are not removable from office
except by an order of the President and that also only on the ground of proved misbehavior or
incapacity, supported by a resolution adopted by a majority of total membership of each House
and also by a majority of not less than 2/3 of the members of that House present and voting.

(d) Lengthy Tenure:

Although the Constitution does not provide for life tenure, the existing provision of 65 years, in
effect amounts to nearly the same. A retiring age of 65 is, by Indian standard, very high,
considering the average span of life in India and also the average fitness of persons for work in
old age. Moreover, a retired judge according to Article 128, may be reappointed a judge by the
Chief Justice of India, with the consent of the President.

Hence, if a judge is hale and hearty, sound in mind as well as in body, capable of rendering
service, for a few years more, he can be easily accommodated. Longevity of tenure keeps him
immune from temptation to amass fortunes for the old age.

(e) Oath to Work Fearlessly:

Before assumption of office, the judges have to take an oath to perform their duties fearlessly
and to uphold the Constitution. The ruling party committed to a particular ideology expects the
judges to read the writing on the wall and act accordingly. The supersession of three judges and
appointment of a junior judge as Chief Justice raised the issue. Ex-Chief Justice S.M. Sikri was
of the view that commitment to the philosophy of the ruling party is not the part of the oath
administered to a judge. Hence such commitment should not be expected of him.

(f) No Practice after Retirement:

A retired judge of the Court is prohibited from practicing law before any Court of authority
within the territory of India. The Constitution, however, permits the appointment of a retired
judge for a specialized form of work by the Government, for instance for conducting enquiries
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and special investigations. Das Commission for conducting enquiry against Sardar P.S. Kairon,
ex-late Chief Minister of Punjab is an example of such enquiries assigned to a judge. Khosla
Commission to enquire into Netaji’s death by an air crash and more recently Justice Pathaks’
Authoritative Report against External Affairs minister—Natwar Singh may be quoted as such
instances. In fact, such examples can be multiplied.

(g) Powers to Make Rules to Regulate their Procedure:

The Supreme Court is equipped with full powers to make rules for regulating its practice and
procedure and to take effective steps for the enforcement of its decrees and orders.

(h) Control over Establishment:

The Court is fully authorized to have its own establishment and have complete control over it. It
was, however, thought that in the absence of such a provision, the Court’s independence
becomes illusory. If for promotion, the establishment is to look to other quarters, it is likely to
affect the independence of the judiciary. Hence, all appointments of officers and servants of the
Supreme Court are made by the Chief Justice and the judges of the Supreme Court whom he may
direct for the purpose. Their conditions of service also are determined by the Supreme Court.

(i) Denial of Political Office before or after Retirement:

The judges should not be allowed to hold political office after retirement otherwise they will
have the temptation of creating ground for becoming the political leaders or gaining some other
lucrative office through political Godfathers during their tenure as judges. Moreover, they should
not be allowed to seek election to the Parliament or contest for any other political office during
the term of their office after resigning from the office of a Judge. K. Subba Rao ex-chief Justice
of India resigned from the august office and contested for the President ship of India.

Naturally he had to pander to the opposition parties for support. Such a step seriously impairs the
independence of Judiciary as mind for election is to be made much before election. Thus for a
favor, the favors are apt to the doled out as well.

(j) Immunities:

The actions and decisions of the judges in their official capacity are immune from criticism.
They may, however, be subject to critical academic analysis. In order to maintain the dignity of
the Court and to protect it from malicious criticism, the Court has been empowered to initiate
contempt proceedings against any alleged offender and take appropriate action. The Court is,
also authorized to stop any act that might prejudicially affect its arriving at an impartial and
independent decision.

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(k) Appointment by the Executive:

Independence of judiciary to quite a great extent depends on the method of appointment of

judges. Election of the judiciary by the people or the legislature would make it subservient to the
whims of the masses or a tool in the hands of legislators. The “Judiciary should be above
suspicion and should be above party influences.” Hence judiciary should be appointed by the
executive.

Every judge of the Indian Supreme Court is appointed by the President, after consultation with
such of the judges of the Supreme Court, and the High Courts of the State, as the President may
deem necessary for the purpose. In the appointment of a judge other than the Chief Justice, the
President must consult the Chief Justice.

In actual practice, he is apt to be guided by ministerial advice as in all other significant

appointments. What can be its repercussion in the context of the latest thinking of having
‘committed judiciary’ is not difficult to speculate. An example established that government
imbued with socialistic ideas did not like to appoint such people as judges who impeded
socialistic progress and were reactionary in their outlook.

The supersession of three judges viz., Messers J.M. Shelat, K.S. Hegde and A.N. Grover and
elevation of a junior Judge Mr. A.N. Ray to the post of Chief Justice of the Supreme Court led to
scathing criticism by the concerned and their adherents that the President of India could make
such appointments or effect such promotions with extraneous considerations in view.

In this case three superseded judges had given verdict against the controversial 24th and 25th
Amendments on April 24, 1973. Only two days later on the retirement of Chief Justice, S.M.
Sikri, a junior judge was promoted as the Chief Justice. In the opinion of distinguished lawyers
and judicial luminaries, this was very unfortunate action on the part of the Executive since it
impaired independence of judiciary a great deal.

It was contended that Judges toeing the line of the ruling party alone could hope for promotions.
Besides, it was feared that the future appointments might be made only out of judges or
advocates or jurists who will be committing themselves to the philosophy of the party in power.

(I) Right to Information Act:

As per 37th Chief Justice of Apex Court—Hon’ble Balakrishnan Judges are the constitutional
functionaries. Hence they are not coverable under the ‘Right to Information Act’. The Chief
Justice of India opined “…I am holding a Constitutional Office” This view has not been accepted
by the Parliamentarians.

The report of the Parliamentary Standing Committee which was presented to the Rajya Sabha on
April 29, 2008 stated, “Except judicial decisions making, all other activities of administration
and persons included in the judiciary are subject to the RTI Act. The pith and substance of the

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Act is to empower people by allowing them to seek information regarding those occupying high
office and making decisions which affect their lives. Any reluctance only accounts to dilution of
people’s right to know.

The Parliamentarians feel if other constitutional functionaries are covered why not the Judges be
covered by it? This will further help in maintaining independence of judiciary as they will be
accountable to the people of the country as well. Of course judicial decisions have been
exempted from ‘RTI Act’ because that could have impaired right judgements.

Some of the remarks of the legal luminaries expressing high-handedness of the Executive
impairing the dignity of the Indian Judiciary and striking at the root of its independence are
worth quoting. In the words of Mr. S.M. Sikri ex chief Justice of India, the supersession of three
judges was “a big blow to the independence of judiciary…they were superseded after they
decided against the government.”

Six eminent jurists including M.C. Setalvad and M.C. Chagla ex-chief Justice of Bombay were
of the view that the Union Government’s decision to supersede three senior most judges of the
Supreme Court was “a manifest attempt to undermine the courts’ independence…It is the saddest
day in the history of our free institutions. ”

A resolution of Supreme Court Bar Association also emphasized the same point in the words, “it
is a blatant and outrageous attempt at undermining the independence and impartiality of the
Judiciary and lowering the prestige and dignity of the Supreme Court.”

No doubt if the judges were to be committed to a particular social philosophy, a similar case will
be decided differently in different states. Moreover with the ousting of the party in power, judges
will become out of tune with the new party coming in power. This will vitiate the whole
atmosphere of the country.

The Executive and the Judiciary in that case will always be on the look out to undermine each
other’s prestige. P.A. Sangma former Lok Sabha Speaker portrayed judicial activitism viz-a-viz
Executive and the Legislature in a balanced statement: “All the three arms of the Government are
meant to be active and complimentary. The inactive role of the Executive in the recent past has
resulted in the emergence of judicial activism… executive dormancy does trigger off judicial
activism…If the people of this country find that their aspirations and fundamental rights are not
protected because of the state’s inactions, they go to the courts. Why blame the courts it can only
be blamed on the undesirable proclivity to acquiescence. ”

However acclaiming yeoman service rendered by the judiciary, he suggested a restraint based on
extraordinary understanding of the governmental system of functioning and rightly pointed out
that “the courts of last resort should not end becoming the courts of first resort.”5

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The Government defending its case super-session of senior judges was however of the view that
even according to Law Commission’s recommendations; seniority alone may not be the criterion
for elevation of a judge to the post of Chief Justice. In this case, the superseded judges were if
not better at least as good, as the new Chief Justice, as opined by S.M. Sikri. So there does not
seem to be any other reason except political consideration for by-passing these judges.

This concept of committed judiciary having dangerous consequences has given a severe set-back
to the concept of independence of judiciary. Hence Dash has remarked, “Thus the Indian
Judiciary has not been as well protected against temptations and allurements or threats of
punishments as will eliminate all possibilities of consideration of personal career in the discharge
of their duties,”

Thus it can be concluded that the Constitution and its executors have made genuine attempts to
make the Supreme Court independent and impartial. The occasional attempts to deviate from this
practice may be generalized.

CONSTITUTIONAL PROVISIONS

Many provisions are provided in our constitution to ensure the independence of the judiciary.
The constitutional provisions are discussed below:

1. Security of Tenure: The judges of the Supreme Court and High Courts have been given
the security of the tenure. Once appointed, they continue to remain in office till they
reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art.
124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot
be removed from the office except by an order of the President and that too on the ground
of proven misbehavior and incapacity. A resolution has also to be accepted to that effect
by a majority of total membership of each House of Parliament and also by a majority of
no less than two third of the members of the house present and voting. Procedure is so
complicated that there has been no case of the removal of a Judge of Supreme Court or
High Court under this provision.

2. Salaries and Allowances: The salaries and allowances of the judges is also a factor
which makes the judges independent as their salaries and allowances are fixed and are not
subject to a vote of the legislature. They are charged on the Consolidated Fund of India in
case of Supreme Court judges and the Consolidated Fund of state in the case of High
Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2))
except in the event of grave financial emergency.

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 3. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament
may change the pecuniary limit for the appeals to the Supreme Court. Parliament may
enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary
powers on the Supreme Court to enable it work more effectively. It may confer power to
issue directions, orders or writs for any purpose other than those mentioned in Art. 32.
Powers of the Supreme Court cannot be taken away. Making judiciary independent.

4. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide

that there shall be no discussion in the legislature of the state with respect to the conduct
of any judge of Supreme Court or of a High Court in the discharge of his duties. A
similar provision is made in Art. 121 which lays down that no discussion shall take place
in Parliament with respect to the conduct of the judge of Supreme Court or High Court in
the discharge of his duties except upon a motion for presenting an address to the
President praying for the removal of the judge.

5. Power to punish for contempt: Both the Supreme Court and the High Court have the
power to punish any person for their contempt. Art. 129 provide that the Supreme Court
shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that
every High Court shall have the power to punish for contempt of itself.

6. Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the
judiciary from the executive in the public services of the state. The object behind the
Directive Principle is to secure the independence of the judiciary from the executive. Art.
50 say that there shall be a separate judicial service free from executive control.6

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 NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
In a historic ruling that the primacy of the judiciary in judges’ appointments was embedded in
the basic structure of the Constitution, the Supreme Court today declared unconstitutional an
amendment to validate the National Judicial Appointments Commission (NJAC) Act, which had
contemplated a significant role for the executive in appointing judges in the higher judiciary.
Effectively sealing the fate of the proposed system, which was unanimously passed by both
Houses of parliament, a five-judge Constitution Bench ruled with a 4:1 majority that judges’
appointments shall continue to be made by the Collegium system in which the Chief Justice of
India will have “the last word”.7

WHAT IS THE NJAC?

The NJAC proposes to make the appointment of high court and Supreme Court judges and chief
justices more transparent. They will be selected by the commission, whose members will be
drawn from the judiciary, legislature and civil society.

HOW WERE JUDGES APPOINTED BEFORE?

Until the NJAC came along, Articles 124 and 217 of the Constitution dealt with the appointment
of judges of the higher judiciary.

These articles specifically said that judges would be appointed by the President of India after
“consultation” with the Chief Justice of India (CJI) and other judges.

The word “consultation” is significant because in 1993, in the so-called Second Judges case, the
SC decided that the CJI must agree to all judicial appointments—a concept known as
“concurrence”.

This created the collegium system, wherein the three senior most Supreme Court judges decided
on who would be a high court or Supreme Court judge.

WHAT WILL THE NJAC DO?

It will replace the collegium.

With the NJAC amendment, Articles 124 A, B and C were added to the Constitution to make the
NJAC valid.

Articles 124 A and B define the NJAC, its members and their duties, while Article 124 C
empowers Parliament to make laws in the future to regulate the procedure for the appointment of
judges.

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WHO WILL BE ON THE NJAC?

 The CJI will be chairperson

 The next two senior most Supreme Court judges

 The law and justice minister; and

 Two eminent persons, to be selected by a committee comprising the CJI, Prime Minister
and leader of the opposition

WHY IS IT NOT IN ACTION YET?

The NJAC Bill 2014 that established the NJAC was introduced and passed by both houses of
Parliament with the Constitutional (99th Amendment) Bill 2014 in August last year. The
President gave his assent to the bill on 31 December 2014 and the Act was notified by the
government on 13 April 2015. However, by then the Act had been challenged in various public
interest litigations in the Supreme Court.

The NJAC hasn’t yet taken up its mandate. CJI H.L. Dattu wrote to the Prime Minister on 25
April 2015, “I have to say that it is neither appropriate nor desirable to attend the meeting or be
part of the NJAC till the Supreme Court decides its validity.”

On 15 July 2015, both sides completed arguments in the NJAC matter and the Supreme Court
has been working on writing its judgment since then.

HOW DID THE COLLEGIUM SYSTEM COME ABOUT?

The collegium system evolved after three landmark judgments of the Supreme Court, known as
the ‘three judges cases’: the first, second and the third judges cases.

The so-called first judge’s case was the S.P. Gupta case. It decided on 30 December 1981 that
the President could, with sensible reasons, refuse judges’ names recommended by the CJI.

This gave the executive more power than the judiciary in the appointments process.

In the second judges case, a nine-judge bench of the SC went the other way and created the
collegium by reversing the first judges case: the majority verdict written by Justice J.S. Verma in
the Supreme Court Advocates on Record Association vs. the Union of India case on 6 October
1993 said that the CJI must be given the primary role in judicial appointments.

The reasons Verma gave for his ruling were “justiciability” and “primacy”, or, in his words,
“...this being a topic within the judicial family, the executive cannot have an equal say in the

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matter” of appointments. “Should the executive have an equal role and be in divergence of many
a proposal, germs of indiscipline would grow in the judiciary,” Verma added.8

However, the three judges ruling in this case could not agree on the precise role of the CJI in the
process, leading to years of confusion surrounding the appointment and transfer of judges.

The last judgment in the series, the 1998 third judges case, cleared things up after the President
asked the Supreme Court to do so. In this case, the Supreme Court came up with nine guidelines
on how the collegium system should function.

This third case cemented the supremacy of the judiciary in the appointment and transfer of
judges.

WAS THE CREATION OF THE NJAC CONSTITUTIONAL?

The validity of Article 124 A, which basically did away with the collegium, replacing it with the
NJAC, is the crux of the matter before the Supreme Court.

ARGUMENTS FOR:

The NJAC amended the Constitution, so the second judges case that created the collegium is
irrelevant because the Constitution is now different from what it was back then.

The so-called “basic structure of the constitution”, whose primacy has been upheld by several SC
judgments because it safeguards the separation of powers and the independence of the judiciary
from the executive, remains intact under the NJAC, as the NJAC’s chairperson is the CJI, who
has an important role to play.

Furthermore, the NJAC is good for democracy (which is also a basic feature of the Constitution)
and requires that no organ of the state, including the judiciary, enjoys absolute freedom.

Attorney general Mukul Rohatgi argued that to retain “public confidence”, judicial appointments
“must be seen both in the context of independence of the judiciary as also the need for checks
and balances on it”.

AGAINST:

The counter-argument is that Parliament made an unconstitutional amendment by introducing

Article 124 A. In the second judges case a nine-judge bench laid down the primacy of the CJI as
part of the basic structure of the Constitution and the 99th Amendment Act cannot simply violate
this now.

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WHAT ABOUT PARLIAMENT’S SWAY OVER THE NJAC?

Article 124 C gives Parliament powers to govern the functioning of the NJAC by making
ordinary laws in the future.

ARGUMENTS FOR:

a. This by itself does not affect the separation of powers. Historically, Parliament has always had
power over the judiciary without compromising the separation of powers.

b. Even with the separation of powers, it is considered normal to redistribute the powers in
favour of one of the pillars of democracy from the other.

c. Parliament has been given “legislative supremacy” under the Constitution, which is why it
could pass the 99th Amendment that created the NJAC in the first place.

AGAINST:

a. Article 124 C empowers the legislature to freely change the powers governing the NJAC
through the ordinary law-making process. This obviously violates the theory of the separation of
powers. It basically gives the legislative pillar massive powers, which can lead to an elected
dictatorship by Parliament and ultimately the suppression of democracy.

So even if the Supreme Court held that the NJAC is valid, Parliament should not be able to
change the laws related to the Constitution or governance of the NJAC so easily.

IS THE SECOND JUDGES CASE RELEVANT TO NJAC?

The second judges’ case decided that the CJI has the final word, i.e. “primacy”, in judicial
appointments.

One of the major bones of contention in the NJAC matter was whether this principle of the CJI’s
“primacy” had become a constitutional convention, i.e., a fundamental part of the Constitution
that could not simply be changed by Parliament whenever it felt like it.

In the second judges case the court said that “once it is established to the satisfaction of the Court
that a particular convention exists and is operating, then the convention becomes a part of the
‘constitutional law’ of the land and can be enforced in the like manner”.

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ARGUMENTS FOR NJAC:

a. Conventions are only a supplementary system of enforcement of the basic structure of the
Constitution. Changing the convention of the collegium system does not change the basic
structure if the independence of the judiciary is maintained.

AGAINST NJAC:

a. The second judge’s case decision gave the CJI the main power in appointments to ensure the
independence of the judiciary, which has now become part of the basic structure of the
Constitution.

b. Applying the English law doctrine of convention, the collegium system has already developed
into a constitutional convention and should not be tampered with.

SHOULD EMINENT PERSONS BE PART OF THE NJAC?

Article 124 A sets out the composition of the National Judicial Appointments Commission and
envisages the presence of two “eminent persons” on the NJAC, who would be nominated by a
committee of the Prime Minister, the CJI and the leader of the opposition or the single-largest
opposition party in the Lok Sabha. One of the eminent persons must be a woman or someone
belonging to a scheduled caste, scheduled tribe, other backward classes or another defined
minority.

FOR:

a. Eminent persons would represent the people and civil society, which would increase the
confidence of the people in the judiciary. Their presence on the NJAC ensures that the judges
who are selected would remain sensitive to the people’s interests.

b. The presence of eminent persons will bring diversity in the NJAC and by extension in the
judicial appointments. Eminent persons facilitate a participatory appointments process and bring
in plurality of viewpoints. The UK leads by example in this regard where the Supreme Court
selection commission is to consist of at least one non-legally qualified member while the UK’s
Judicial Appointments Commission comprises five such lay members.

c. Eminent persons will act as a check against arbitrary exercise of power by any of the other
members on the NJAC. They would be truly independent individuals who approach the
appointments process from a detached standpoint.

AGAINST:

a. Just who exactly is an eminent person under Article 124 A is rather vague because no criterion
of selection has been given. The committee’s views on who is eminent could be radically

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different from the view of the general public, or there could be disagreement even within the
committee of who is eminent, in the absence of general criteria.

b. Eminent persons could pose a risk to the independence of judiciary especially if they have
vested interests in the executive, because they have the effective power to shoot down the
nomination of any candidate.

c. Eminent persons would not be able to determine the capability of a judge if they have no
experience in the field.

IF THE NJAC IS KILLED BY SC, WHAT WOULD HAPPEN TO IT?

The two options are the so-called “doctrine of revival” and the “doctrine of eclipse”. This is
interesting but also academic, because the Supreme Court has never decided on this before and
so no one knows what will happen.

On the one hand, if the NJAC were struck down, the doctrine of revival would re-instate the
collegium system and make the whole NJAC and the 99th constitutional amendment invalid.

On the other hand, the doctrine of eclipse would call for the Supreme Court to tinker with the
process of NJAC carefully so that the current portions of the law that are unconstitutional are
removed and the NJAC can then function properly.

TRANSPARENT AND OBJECTIVE PROCESS

The pool of eligible candidates for judicial selection is partly determined by the Constitution.
The Constitution does not speak about standards of integrity, propriety, competence,
independence, etc. as qualifications essential for judicial selection. Apparently, they are taken for
granted and left to the selectors to assess them by whatever means available to them. Collegium
judges say they know the qualities of the men and women practicing before them and no one else
can claim better knowledge about this. One may then ask how wrong appointments have been
made by the collegium judges; what the procedures they employed were to verify their
knowledge on attitudes and values of prospective candidates and how fair they were; what the
pool of candidates from among whom they made their selection was, whether it was fair to those
outside the pool, and whether they were still eligible. If these justifiable questions have to be
addressed in the selection process, there has to be a verifiable method of creating a pool of
eligible persons for consideration. The system of examination and interview employed in the
selection to the lower judiciary is perhaps not acceptable either to judges or to advocates. In the
circumstances, a transparent procedure is to prescribe the norms and standards expected of
candidates seeking to be appointed as judges and invite applications from them. Alternatively,
they can be nominated by retired judges, senior advocates, bar councils or bar associations, etc.,
testifying to their possession of qualifications prescribed. On receipt of applications, a system of
short listing based on comparative merit, again according to pre-determined norms and

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procedures can follow to identify those who are meritorious. Both the original list of
applicants/nominees and those shortlisted along with their details can be posted on the website of
the court for a reasonable period to elicit objections, if any, from the government as well as the
public. There can be a technical committee of retired judges to shortlist the applications and to
respond to objections/grievances in the initial stage of selection. This part of the procedure
should be open to Right to Information Act queries as well.9

REPRESENTING A FULL COURT

As judicial independence is both an individual and collective responsibility, it is important to

involve the full court in the selection, appointment and transfer processes of judges. Towards this
end, it is necessary to broad base the membership of the collegium. As most High Courts have
nearly 50 or more judges, and their numbers are increasing, it is not possible to have the entire
body of judges sitting in the collegium to deliberate on issues of appointments. At the same time,
it is not acceptable to have the Chief Justice and two or three of his senior colleagues only
deciding the issues which are of importance to the entire body of judges. As such, broad basing
the collegium by accommodating all judges on a rotational basis is something that has to be
evolved. It is possible to enlarge membership of the collegium in each High Court and Supreme
Court to a third of the total strength of the court. Such an enlarged body has possibilities of being
inclusive of women, minorities, Scheduled Castes and Scheduled Tribes, and therefore primitive
of the constitutional goal of social justice in judicial appointments as well. A third of members
can retire every two years thus bringing into the collegium fresh minds and wide representation.

It is difficult to accept the theory that all advocates selected through the processes prescribed will
turn out to be competent judges from the day they join the high bench. According to a study, it
takes five to 10 years for an advocate to transform himself/herself into becoming a competent
judge. The duration can possibly be reduced through institutionalized education and training.
This was the idea with which judicial academies have been established in various States and at
the national level. Unfortunately, the lack of trained judicial trainers and the absence of clear
policies on human resources management in the judiciary have led to a situation where the
development of the capabilities of individual judges has been neglected. The result is a poor
quality of judgments, an inordinate delay in the processing of cases and judges retiring without
delivering judgments on cases which they have heard. The trend has been a threat to institutional
independence and not addressed by the judiciary adequately. The collegium has to find a way to
assess the professional competence and productivity of the candidate at the time of appointment
and insist on training for those who are inadequately equipped to handle adjudicative tasks.

The executive and legislative branches have to bring in immediate reforms that are essential to
supplement efforts at strengthening the collegium system. There must be a uniform age of
retirement for judges at all levels; it could be 65 or even 70. Of course, there must

9
http://www.thehindu.com/opinion/lead/a-way-to-judicial-independence/article7896653.ece

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simultaneously exist a system of weeding out the dead wood after the age of 50. What is the
rationale of retiring efficient judges at 62 or 65 when there is an inadequate supply of competent
judges to fill the vacancies?

In addition, the time for an All India Judicial Service has come and the government should
legislate for the purpose. Because of the Five Year Integrated LLB programmed and the National
Law Schools experiment, the country now has a steady supply of bright young lawyers every
year to look after the legal services needs of the nation. They are technology savvy and are also
amenable to modern methods of adjudication, if trained suitably. Within 10 to 15 years of
serving the lower judiciary, they will acquire the expertise and the experience to fill in the
expanding needs of the higher judiciary. The difficulties of finding suitable candidates for the
high courts will disappear within a decade of establishing the All India Judicial Service.

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CONCLUSION
The independence of the judiciary as is clear from the above discussion hold a prominent
position as far as the institution of judiciary is concerned. It is clear from the historical overview
that judicial independence has faced many obstacles in the past especially in relation to the
appointment and the transfer of judges. Courts have always tried to uphold the independence of
judiciary and have always said that the independence of the judiciary is a basic feature of the
Constitution. Courts have said so because the independence of judiciary is the pre-requisite for
the smooth functioning of the Constitution and for a realization of a democratic society based on
the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have
discussed has led to the appointment of at least some Judges against the opinion of the Chief
Justice of India. The decision of the Judges Case was could never have been intended by the
framers of the Constitution as they always set the task of keeping judiciary free from executive
and making it self-competent. The decision of the Second Judges Case and the Third Judges
Case is a praiseworthy step by the Court in this regard.

There is a saying that “‘Power tends to corrupt, and absolute power corrupts absolutely”

- Lord Acton

Whenever there is a mention of the independence of the judiciary, there is always a concern
about the latent dangers of the judicial independence and there arises the importance of “Judicial
Accountability”. The recent development in this regard is the recommendation of the Law
Commission for the inclusion of a whistleblower provision, aimed at protecting those making
complaints against judges, in a draft bill dealing with the removal of judges of the Supreme
Court and High Courts. Introduction of such a bill by the Law Commission is a major step in the
direction of making changes to the rigid procedure in our constitution for the removing of the
judges of the Supreme Court and the High Courts.

The final outcome of the above discussion is that the importance of the independence of the
judiciary was long ago realized by the framers of the constitution which has been accepted by the
courts by marking it as the basic feature of the constitution. It is well known law has to change so
as to meet to the needs of the changing society. Similarly judicial independence has to be seen
with the changing dimension of the society. Judicial Accountability and Judicial Independence
have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.

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REFERENCES
 http://mulnivasiorganiser.bamcef.org/?p=482
 http://www.yourarticlelibrary.com/india-2/independence-of-judiciary-in-india/49299/
 http://www.thehindu.com/opinion/lead/a-way-to-judicial-
independence/article7896653.ece
 http://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/
 http://indianexpress.com/article/india/india-news-india/sc-strikes-down-njac-revives-
collegium-system-of-appointing-judges/
 http://www.livemint.com/Politics/rcsu24yGQ0frdanyQ9fVVL/All-you-need-to-know-
about-NJAC.html
 http://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-
decoded/article7768919.ece

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